This ease presents error from the district court of Coal county, where 'it was tried .after being remanded by this court in its opinion of'May 15, 1908. Hussey v. Blaylock, 21 Okla. 220, 95 Pac. 773, 17 L. R. A. (N. S.) 622. It is now again before this court on the identical facts and questions that were presented and passed upon by us on the former trial. On that occasion we held:

“The evidence on the part of plaintiff was sufficient to prove his cause of action, and there was no substantial evidence offered by the defendant upon any material issue in the case. It was error for the trial court to refuse to instruct the jury to return a verdict in favor of the plaintiff.”

Counsel for plaintiff have, briefed and argued the case, but the defendant has filed no answer brief, nor has any excuse been offered for this neglect or failure. The brief -filed supports the - contentions made, and the same judgment will •be rendered as before except the cause is remanded to the trial court, with instructions to set aside the judgment entered, and enter one awarding to plaintiff the possession of the property sued for, and then impanel a jury for the purpose of assessing his damages.